Stanton v. Ryan

41 Mo. 510 | Mo. | 1867

Wagner, Judge,

delivered the opinion of the court.

The questions presented by the record and which are submitted for our consideration grow out of the statute in relation to witnesses. There was no error in allowing the plaintiffs as surviving partners to testify, as the action was brought on an account or quantum meruit, and the defendant had the right, and full opportunity was afforded him, to interpose his own testimony in opposition to theirs. But he went further and sought to set up a contract for the erecting of the building made with the senior partner of the firm, who was dead at the time of the trial, and to sustain this contract offered himself as a witness. He was objected to and excluded by the court. The Gen. Stat. § 1, p. 586, removes the disabilities heretofore existing by which parties to the record were forbidden to testify, and allows them to become witnesses for themselves and in their own behalf; subject, however, to the limitation, that in actions where- one of the original parties to the contract or cause of action in issue, and on trial, is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor. The great object and purpose of the law was to destroy the restrictions and incapacities which operated as rules of exclusion by the law of evidence, and to permit every person, inclusive of parties, to give evidence; to allow all, without regard to interest, oven though they were parties to the suit, to disclose all the facts within their knowledge or possession, and let whatever credibility they might be entitled to be passed upon by the jury. This may be calculated to dra.w forth the truth, though we entertain serious doubts about the wisdom of the enactment. But it was seen that, where one of the parties was dead, or disqualified by reason of insanity, that the parties would not stand on an equal footing, he would be unable to oppose his oath to that of the opposite party, and therefore the party living or sane was precluded from testifying.

The elder Mr. Stanton, the senior partner, with whom the contract was alleged to be made, was dead, and according to the spirit and intention of the law it was not competent for Ryan, the defendant, to introduce himself as a witness to prove the contract. The suit was not instituted on the contract; it was denied that any contract existed; the surviving plaintiffs knew nothing about it; and to permit Ryan, by his own testimony, to come in and set up, and prove its terms, when Stanton’s lips were sealed by death, and could not be there to contradict, qualify or explain his statements, is at war with .justice, and certainly not authorized by law.

The defendant offered to prove that his wife, acting as his agent, attended to the erection of the building and let out the contract for the same, and then proposed to prove by her that she contracted with the deceased Mr. Stanton to do the work and furnish the material, and the price and terms stipulated between the parties. This the court rejected on the ground that the wife was necessarily disqualified with the husband. The fifth section of the act already referred to provides that no married woman shall be disqualified as a witness, in any civil suit or proceeding prosecuted in the name of or against her husband whether joined or not with her husband as a party, in matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.

In support of the decision in the court below, it is contended that as the husband was incompetent on account of the death of the adverse party, with whom the contract purported to be made, the wife could not be admitted to testify to prove a contract when the deceased party was powerless to be heard on the other side. This view of the question might furnish excellent reasons for changing or modifying the law; but if the statute declares differently, we are not warranted by judicial legislation in perverting the plain meaning of the statute to conform to what we might consider sound policy. It cannot be gainsaid that if the defendant had given a full delegation of power to an ordinary agent to make a contract for and superintend the building, that such agent would have been competent to prove the contract when a dispute arose concerning the same, whether the person with whom he contracted was dead or not.

The statute expressly authorizes the wife to give testimony in all transactions where she acted in the matter as agent for her husband, whether she is joined with him as a party to the record or not. There is no distinction recognizable between her and any other agent as regards capacity to be a witness. The fifth section relating exclusively to married women testifying, is independent and complete within itself, and is not controlled or qualified by the first section. If an agency were proved, we think the testimony of Mrs. Ryan should have been admitted. The case must therefore be reversed and remanded.

The other judges concur.